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Attorney General Tom Horne and Secretary of State Ken Bennett Join Kansas to Sue the Elections Assistance Commission

Proposition Passed by Arizona Voters Would Require People to Show Evidence of Citizenship When Registering to Vote

Phoenix, AZ (Wednesday, August 21, 2013) – Arizona Attorney General Tom Horne and Secretary of State Ken Bennett have joined forces with the state of Kansas in suing the Elections Assistance Commission (EAC). 

The lawsuit, which was filed this morning alongside the Kansas Secretary of State, comes after the EAC refused to approve a state-specific requirement, consistent with proposition 200 passed by Arizona voters, under which Arizona can ask people registering to vote for evidence that they are citizens. 

“We are pursuing the path set out for us by the U.S. Supreme Court in the case I personally argued last March, in which the court required us to pursue certain avenues prior to their considering our constitutional argument,” said Arizona Attorney General Tom Horne. “The argument is that it is unconstitutional for the federal government to prevent Arizona from obtaining the information it needs to enforce its photo qualifications. The Supreme Court appeared to be in agreement by saying that that action by the federal government ‘would raise serious constitutional doubts’. After pursuing these procedures, we will win this case and establish Arizona’s right to be sure that only citizens vote in Arizona, and not illegal aliens.”

The process with the EAC began after a recent decision by the United States Supreme Court in Arizona vs. Inter Tribal Council of Arizona, which was personally argued by Attorney General Horne. That case considered whether proposition 200 was preempted by federal law.

In that decision, the United States Supreme Court noted that determining qualifications for voters in federal elections is a state, not a federal function. The Court stated that “it would raise serious constitutional doubts if a federal statute precluded a state from obtaining the information necessary to enforce its voter qualifications.”

The Supreme Court stated that Arizona could apply to the EAC for a state-specific requirement that potential registrants furnish evidence of citizenship, and if the EAC did not grant the state’s specific requirements, to pursue the constitutional issues in court.

Arizona and Kansas are both suing on the grounds that that refusal is a violation of Arizona’s constitutional duties under Article 1 § 2 of the United States Constitution, and the United States Supreme Court statement quoted above.

The lawsuit seeks a writ of mandamus – effectively a court order – compelling the EAC to modify the voter registration forms as Arizona and Kansas have requested, so the forms would require evidence of citizenship rather than the mere oath or affirmation of the applicant. The lawsuit alleges that EAC has “a nondiscretionary duty to make the proposed modifications” and cannot deprive sovereign States of “the constitutional right, power, and privilege to establish voting qualifications, including voter registration requirements.” Under applicable court rules, EAC has 60 days to file an answer admitting or denying the States’ allegations.